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In re Kellogg Brown & Root, Inc.

United States Court of Appeals for the District of Columbia Circuit

May 7, 2014, Argued; June 27, 2014, Decided

No. 14-5055


 [*756]  [**384]   Kavanaugh, Circuit Judge: More than three decades ago, the Supreme Court held that the attorney-client privilege protects confidential employee communications made during a business's internal investigation led by company lawyers. See Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). In this case, the District Court denied the protection of the privilege to a company that had conducted just such an internal investigation.  [***2] The District Court's decision has generated substantial uncertainty about the scope of the attorney-client privilege in the business setting. We conclude that the District Court's decision is irreconcilable with Upjohn. We therefore grant KBR's petition for a writ of mandamus and vacate the District Court's March 6 document production order.

Harry Barko worked for KBR, a defense contractor. In 2005, he filed a False Claims Act complaint against KBR and KBR-related corporate entities, whom we will collectively refer to as KBR. In essence, Barko alleged that KBR and certain subcontractors defrauded the U.S. Government by inflating costs and accepting kickbacks while administering military contracts in wartime Iraq. During discovery, Barko sought documents related to KBR's prior internal investigation into the alleged fraud. KBR had conducted that internal investigation pursuant to its Code of Business Conduct, which is overseen by the company's Law Department.

KBR argued that the internal investigation had been conducted for the purpose of obtaining legal advice and that the internal investigation documents therefore were protected by the attorney-client privilege. Barko responded that  [***3] the internal investigation documents were unprivileged business records that he was entitled to discover. See generally Fed. R. Civ. P. 26(b)(1).

After reviewing the disputed documents in camera, the District Court determined that the attorney-client privilege protection did not apply because, among other reasons, KBR had not shown that "the communication would not have been made 'but for' the fact that legal advice was sought." United States ex rel. Barko v. Halliburton Co., No. 05-cv-1276, 37 F. Supp. 3d 1, 2014 U.S. Dist. LEXIS 36490, 2014 WL 1016784, at *2 (D.D.C. Mar. 6, 2014) (quoting United States v. ISS Marine Services, Inc., 905 F. Supp. 2d 121, 128 (D.D.C. 2012)). KBR's internal investigation, the court concluded, was "undertaken pursuant to regulatory law and corporate policy rather than for the purpose of obtaining legal advice." 2014 U.S. Dist. LEXIS 36490, [WL] at *3.

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756 F.3d 754 *; 410 U.S. App. D.C. 382 **; 2014 U.S. App. LEXIS 12115 ***; 38 I.E.R. Cas. (BNA) 1109; 94 Fed. R. Evid. Serv. (Callaghan) 1078; 94 Fed. R. Evid. Serv. (Callaghan) 1129; 2014 WL 2895939


Subsequent History: Judgment entered by In re Kellogg Brown & Root, Inc., 2014 U.S. App. LEXIS 12447 (D.C. Cir., June 27, 2014)

Rehearing, en banc, denied by In re Kellogg Brown & Root, Inc., 2014 U.S. App. LEXIS 17077 (D.C. Cir., Sept. 2, 2014)

On remand at, Request denied by, Motion granted by United States ex rel. Barko v. Halliburton Co., 2014 U.S. Dist. LEXIS 174607 (D.D.C., Dec. 17, 2014)

US Supreme Court certiorari denied by United States ex rel. Barko v. Kellogg Brown & Root, Inc., 190 L. Ed. 2d 914, 2015 U.S. LEXIS 668 (U.S., Jan. 20, 2015)

Prior History:  [***1] On Petition for Writ of Mandamus. (No. 1:05-cv-1276).

United States ex rel. Barko v. Halliburton Co., 37 F. Supp. 3d 1, 2014 U.S. Dist. LEXIS 36490 (D.D.C., Mar. 6, 2014)


attorney-client, mandamus, district court, internal investigation, legal advice, cases, communications, purposes, compliance, documents, primary purpose, confidential, courts, circumstances, regulations, employees, disclosure, interlocutory appeal, defense contractor, court's decision, interviews, undertaken, reassign

Civil Procedure, Federal & State Interrelationships, Federal Common Law, Applicability, Evidence, Privileges, Attorney-Client Privilege, Scope, Governments, Courts, Common Law, Legal Ethics, Client Relations, Duties to Client, Duty of Confidentiality, Business & Corporate Law, Corporations, General Overview, Writs, Common Law Writs, Mandamus, Discovery, Privileged Communications, Attorney-Client Privilege, Appeals, Appellate Jurisdiction, Certified Questions, Sanctions, Contempt, Interlocutory Orders, Reviewability of Lower Court Decisions, Collateral Order Doctrine, Standards of Review, Clearly Erroneous Review, Judges, Appellate Briefs, Inability to Proceed, Disqualification & Recusal, Federal Judges, Grounds for Disqualification & Recusal